Last year, the Court of Appeal handed down an opinion in the relatively undeveloped area of non-public employee privacy rights vis-a-vis their employer, in Hillside v. Hernandez. That case held that a hidden camera in the workplace could constitute an invasion tort. The Hillside court had relied on an earlier opinion in Sanders v. American Broadcasting Cos. (20 Cal.4th 907).

The latter case involved a third party intruding on an employee’s workspace; it did not involve employer “intrusion” in its own premises. The Supreme Court in Sanders rolled back the broad holding of the Court of Appeal, which had flatly said that there was no right of privacy as such in the workplace. But it did not roll that point back with respect to the employer.

Nevertheless, the Court of Appeal in Hillside at least in part on that analysis, ran with that and held that the employer had some boundaries. For a while at least, that opinion was good law. It was depublished in January when the Supreme Court granted review. The briefs have been filed, but the case has not yet been argued.

Meanwhile, the Ninth Circuit held, in a case slightly off-point, that an employer may give law enforcement consent to search an employees office. (U.S. v. Ziegler (9th Cir. 2007) 474 F.3d 1184.) The case recognize, following the U.S. Supreme Court, that an employee has some expectation of privacy in his workplace against law enforcement. (Ibid. at 1189-90, citing Ortega v. O’Connor (1987) 480 U.S. 709, 716. (1987), accord Sanders, supra.) In Ziegler, the Ninth Circuit says that the employer has consent to allow searches of the employee’s workplace because it was “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Ziegler, supra, at 1191.)

What impact will that have—if any—on the California Supreme Court’s decision in Hillside? Maybe none, because, to me, all they have to do is reaffirm their holding in Sanders: simply that while employees do have a right of privacy at work from the outside world, but not from their employers.

We shall see. I am adding this case to the track list.

The poorly decided case of Hernandez v. Hillside has been depublished.

I rarely express strong opinions on case law like this. Often, I don’t understand all of the details to really speak with the level of authority I feel is necessary to be critical. But, Hillside speaks on an issue that I spent the better part of a year litigating.

The worst part of Hillside is its sloppy misreading of Saunders. You can read my original analysis here.

Hat tip to Sheppard Mullin.

You can read their more detailed analysis. I would just add that the technical holding in the Saunders case cited by the Hernandez court is not

As a matter of law, a claim of intrusion cannot fail merely because the
events or conversations which the defendant intruded upon were not
completely private from all other eyes and ears

as the court states.

The Saunders court merely held that an employee had an expectation of privacy at his or her workplace from non-employer third parties. It did not disturb that aspect of the lower court ruling which had flatly held that there was no expectation of privacy in the workplace from employers. And while no published California case may have held that public offices contained little or no expectation of privacy from employers, that is the majority rule in the United States.

This case would appear to overrule that technical holding.

While plaintiffs did not enjoy complete and absolute
privacy in their office, it was reasonable for them to expect images of
them in their office with the door closed would not be transmitted to
another portion of the building.

(2006 Cal. App. LEXIS 1390 at 24.)

It appears, then, that workplace surveillance in California will be treated with a very skeptical eye. While the ruling here is overturning a summary judgment, chances are that trial courts will see this merely as a “pro-privacy” decision, much in the same way that they saw Sav-On as a pro-certification case.

Indeed, this opinion implies that such surveillance must be narrowly tailored to fit a legitimate business interest, to borrow language from Constitutional law:

Defendants placed a motion-activated camera in a private office shared by plaintiffs, and left it functioning for no legitimate reason
while plaintiffs were present. Nor did defendants alert plaintiffs to
the presence of the camera, so they could modify their behavior to
protect their own privacy. Under these circumstances, defendants have
not established as a matter of law that their conduct was not highly
offensive.

(Ibid.) (Emphasis original.)

Of course, there is probably not much point in surveilling employees—or anyone—who are on notice that their conduct is being watched. It’s a self-defeating cycle. Now keep in mind, these are offices that anyone could walk into at any time. It appears to be the video-taping aspect alone that triggers potential tort liability here.

I often meta-blawg on the “shock and awe” tactics used by many law bloggers, but in this case, it does appear that any workplace surveillance (at least in non-customer/public areas?) should not be videotaped.